Deference in International Courts and Tribunals

Standard of Review and Margin of Appreciation

Edited by Lukasz Gruszczynski and Wouter Werner

Provides a detailed analysis of how far international courts and tribunals have deferred to national judgments, and where their approaches have diverged

Investigates deference through the prism of the standard of review and margin of appreciation, showing how these doctrines have been applied in a range of international courts

Exposes the variety of approaches by international courts, including the International Court of Justice and the International Tribunal for the Law of the Sea, and shows their impact on the perceived incoherence of international jurisprudence

Deference in International Courts and Tribunals

Standard of Review and Margin of Appreciation

Edited by Lukasz Gruszczynski and Wouter Werner

Description

International courts and tribunals are often asked to review decisions originally made by domestic decision-makers. This can often be a source of tension, as the international courts and tribunals need to judge how far to defer to the original decisions of the national bodies. As international courts and tribunals have proliferated, different courts have applied differing levels of deference to those originial decisions, which can lead to a fragmentation in international law. International courts in such positions rely on two key doctrines: the standard of review and the margin of appreciation. The standard of review establishes the extent to which national decisions relating to factual, legal, or political issues arising in the case are re-examined in the international court. The margin of appreciation is the extent to which national legislative, executive, and judicial decision-makers are allowed to reflect diversity in their interpretation of human rights obligations.

The book begins by providing an overview of the margin of appreciation and standard of review, recognising that while the margin of appreciation explicitly acknowledges the existence of such deference, the standard of review does not: it is rather a procedural mechanism. It looks in-depth at how the public policy exception has been assessed by the European Court of Justice and the WTO dispute settlement bodies. It examines how the European Court of Human Rights has taken an evidence-based approach towards the margin of appreciation, as well as how it has addressed issues of hate speech. The Inter-American system is also investigated, and it is established how far deference is possible within that legal organisation. Finally, the book studies how a range of other international courts, such as the International Criminal Court, and the Law of the Sea Tribunal, have approached these two core doctrines.

Deference in International Courts and Tribunals

Standard of Review and Margin of Appreciation

Edited by Lukasz Gruszczynski and Wouter Werner

Table of Contents

1. Introduction, Lukasz Gruszczynski and Wouter WernerPart I: General issues/comparative perspectives 2. Judicial standards of review and administration of justice in trade and investment law and adjudication, Ernst-Ulrich Petersmann3. Deference and the use of the public policy exception in international courts, Ilona Cheyne4. Democracy and distrust in international law: The procedural democracy doctrine and the standard of review used by international courts and tribunals, Benedikt Pirker5. Good faith review, Andrei MamoleaPart II: International investment law and WTO law 6. Beyond the standard of review: Deference criteria in WTO law and the case for procedural approach, Michael Ioannidis7. The role of the standard of review and the importance of deference in investor-state arbitration, Caroline Henckels8. Treaty change, arbitral practice and the search for a balance: Standards of review and the margin of appreciation in international investment law, Erlend Leonhardsen9. Standard of review and scientific evidence in WTO law and international investment arbitration: Converging parallels?, Valentina Vadi and Lukasz GruszczynskiPart III: European Union law 10. National procedural choices before the Court of Justice of the European Union, Pieter Van Cleynenbreugel11. Risk, precaution and scientific complexity before the Court of Justice of the European Union, Patrycja Dabrowska-Klosinska12. Standard of review for necessity and proportionality analysis in EU and WTO law: Why differences in standards of review are legitimate?, Alexia Herwig & Asja SerdarevicPart IV: International human rights law 13. 1. The European Court of Human Rights and standards of proof: An evidential approach toward the margin of appreciation, Monika Ambrus14. Experts in hate speech cases: Towards a higher standard of proof in Strasbourg?, Uladzislau Belavusau15. The standard of equivalent protection as a standard of review, Veronika Bilkova16. Subsidiarity in the Americas: what room is there for deference in the Inter-American System?, Bernard DuhaimePart V: Other international courts 17. Standard of review and the margin of appreciation before the International Court of Justice, Chiara Ragni18. Standard of review and the International Tribunal on the Law of the Sea, Rosemary Rayfuse19. Deference in the International Criminal Court practice concerning admissibility challenges lodged by States, Karolina Wierczynska20. Beyond hierarchy: Standards of review and complementarity of the International Criminal Court, Diane Bernard

Deference in International Courts and Tribunals

Standard of Review and Margin of Appreciation

Edited by Lukasz Gruszczynski and Wouter Werner

Author Information

Lukasz Gruszczynski, Assistant Professor of International Law, Institute of Law Studies of the Polish Academy of Sciences,Wouter Werner, Professor of Public International Law, Free University of Amsterdam

Lukasz Gruszczynski is Assistant Professor of International Law at the Institute of Law Studies of the Polish Academy of Sciences. He is the author of Regulating Health and Environmental Risks Under WTO Law (OUP, 2010).

Wouter Werner is Professor of Public International Law at the Free University of Amsterdam. He is a member of the Dutch Advisory Council on Public International Law, and is an editor of the Leiden Journal of International Law and the Netherlands Yearbook of International Law.

Contributors:

Monika Ambrus, PhD, Lecturer in Public International Law at the Faculty of Law, University of Groningen Uladzislau Belavusau, PhD, Assistant Professor at the Faculty of Law, VU University Amsterdam Diane Bernard, PhD, Senior Researcher at the Belgian National Fund for Research and professeur invitée at the Saint-Louis University - Brussels Veronika Bilkova, PhD, Assistant Professor at the Faculty of Law, Charles University in Prague Ilona Cheyne, Professor at the School of Law, Oxford Brookes University Pieter Van Cleynenbreugel, PhD, Assistant Professor at the Europa Institute, Leiden Law School Patrycja D?browska?K?osi?ska, PhD, Assistant Professor at the Center for Europe, University of Warsaw Bernard Duhaime, Professor at the Faculty of Law and Political Science, University of Québec (Montreal) Lukasz Gruszczynski, PhD, Assistant Professor at the Institute of Law Studies, Polish Academy of Sciences (Warsaw) Caroline Henckels, PhD, Vice-Chancellor's Post-Doctoral Research Fellow at the Faculty of Law, UNSW Australia (The University of New South Wales) Alexia Herwig, PhD, Assistant Professor at the University of Antwerp Michael Ioannidis, PhD, Senior Research Fellow, Max Planck Institute for Comparative Public Law and International Law (Heidelberg) Erlend M. Leonhardsen, Research Fellow at Scandinavian Institute of Maritime Law, Department of Petroleum and Energy Law, Faculty of Law, University of Oslo Andrei Mamolea, PhD Candidate at the Graduate Institute of International and Development Studies (Geneva) Ernst-Ulrich Petersmann, Emeritus Professor of International and European Law at the European University Institute (Florence) Benedikt Pirker, PhD, Post-doctoral Assistant at the Institute of European Law, University of Fribourg Chiara Ragni, PhD, Senior Researcher and Assistant Professor in International Law at the University of Milan Rosemary Rayfuse, Professor at the Faculty of Law, UNSW Australia (The University of New South Wales) and Con-Joint Professor at the Faculty of Law, Lund University Asja Serdarevic, PhD, Researcher at the Centre for European Law, Vrije Universiteit Brussel Valentina Vadi, PhD, Reader at the Faculty of Law, Lancaster University Wouter Werner, Professor at the Centre on the Politics of Transnational Law, Faculty of Law, VU University Amsterdam Karolina Wierczynska, PhD, Assistant Professor, Institute of Law Studies, Polish Academy of Sciences (Warsaw)

Deference in International Courts and Tribunals

Standard of Review and Margin of Appreciation

Edited by Lukasz Gruszczynski and Wouter Werner

Reviews and Awards

"This book is a welcome first foray into the study of the concept of judicial deference by tribunals to states and other bodies in disparate fields of international law. Providing inspiration for further research is one of the book's achievements. Gruszczynski and Werner's book provides a welcome and commendable contribution to the issue of judicial deference in international law generally, i.e. beyond the familiar fields of human rights and trade law." Andrew Legg, Essex Court Chambers London, The Journal of World Investment & Trade

"...Those with some knowledge of the WTO, EU, ECHR and investment legal regimes are in for a real treat, and will find here a veritable banquet of food for thought...The editors are to praise for taming, to the extent practicable, an intractable topic." -Filippo Fontanelli, EJRR